Gianni Buquicchio, President of the 47-nation Council of Europe’s expert body on legal and constitutional affairs, known as the Venice Commission, criticised today the legal evolutions in Poland.
“I am worried”, wrote Buquicchio, “about the worsening situation within the Constitutional Tribunal of Poland. Following the attempts to influence the work of the Tribunal by means of legislative amendments, which were criticised by the Venice Commission, practical steps are now taken with the apparent aim to ensure that the Tribunal act in accordance with the will of the current political majority:
• The new President of the Tribunal was elected on the basis of a questionable procedure;
• The new President delegated her powers to another judge who was elected on a legal basis that had been found unconstitutional by the Tribunal;
• The Vice-President of the Tribunal was sent on a vacation he had not asked for;
• The election of three sitting judges is challenged seven years after the election.
Hitherto the Constitutional Tribunal played a crucial role to ensure respect for human rights, the rule of law and democratic principles in Poland. It is alarming that it is systematically made impossible for the Tribunal to carry out this role assigned to it by the Polish Constitution.”
The changes in law introduced by the nationalist, right-wing Law and Justice Party (Prawo i Sprawiedliwość, PiS), which won a majority in Parliament in October 2015, have strengthened the power of the executive branch over the news media, state prosecutors and nongovernmental organizations, and have undermined the independence of the Constitutional Court. Most recently, the government has cracked down on public gatherings.
The Court, which rules on the constitutionality of legislation and government actions, has been from the outset a major target of Law and Justice and its leader, Jaroslaw Kaczynski, who holds no office but wields the real power.
The crisis began in October 2015 with the appointment of five Constitutional Tribunal judges by the Civic Platform(Platforma Obywatelska, PO) party. These included replacement of two judges whose terms were not due to expire until after the upcoming election that the Civic Platform was predicted to lose. After the Law and Justice party won the parliamentary election, it made its own appointments to the court, arguing that the previous appointments of the five judges by PO were unconstitutional.
In December 2015, PiS changed the court’s decision-making power by prescribing a two-thirds majority vote and mandatory participation of at least 13 of the 15 judges on the Constitutional Tribunal. The appointments and amendments caused domestic protests and counter-protests in late December and early January. The law changes were criticized by the European Union representatives as threatening the rule of law and the human rights of Polish citizens.